People v. Brundage

• Decision Date: 13 July 1981
• Parties: The PEOPLE, etc., Respondent, v. Brian BRUNDAGE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 120

441 N.Y.S.2d 120

83 A.D.2d 579

The PEOPLE, etc., Respondent, v. Brian BRUNDAGE, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 13, 1981.

Kenneth W. Rudolph, New Rochelle, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Matthew J. Keating and Gerald D. Reilly, Asst. Dist. Attys., White Plains, of counsel), for respondent.

Before DAMIANI, J. P., and GIBBONS, MARGETT and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered October 16, 1979, convicting him of robbery in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial of a motion to withdraw his guilty plea.

Judgment reversed, on the law, motion granted, guilty plea vacated, defendant's plea of not guilty reinstated, and matter remitted to the Supreme Court, Westchester County, for further proceedings.

Defendant was indicted together with Ronald Harris, inter alia, for the crime of robbery in the second degree, it being alleged that on May 10, 1979, each aiding and abetting the other and each being actually present, did forcibly steal certain personal property from Leslie Benton.

On August 2, 1979, in the course of a change of plea proceeding, the Assistant District Attorney addressed the defendant and called upon him to admit his guilt by reading the charge from the indictment:

"MR. LACAVA Mr. Brundage do you admit that in the City of Yonkers, County of Westchester, and State of New York, on or about May 10, 1979, that you, together with your co-defendant, Mr. Ronnie Harris, each of you aiding and abetting and acting in concert and each of you being actually present, did forcibly steal property from one Leslie Benton, that is jewelry and current monies of the United States of America?"

In response, the defendant declined to admit the codefendant's participation in the alleged crime, stating, "I could say what I did, I can't say what Ronnie did " (emphasis added), and the following colloquy then ensued:

"MR. LACAVA: You have to admit the facts, you have to admit the facts that I have stated.

"MISS POPKIN Your Honor, he has to admit the crime with which he is charged.

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"THE COURT: Was Ronnie with you at the time?

"THE DEFENDANT: I can't say that either." (Emphasis added.)

The Assistant District Attorney stated that the indictment charged that the defendant and Harris committed the crime together and that it was unacceptable to him to accept the plea in any other manner.

In response the court ruled that the plea must be taken in the language of the indictment or not at all. The following ensued:

"THE COURT: The District Attorney wants a plea according to the indictment, and I agree with him. I am not going to accept the plea other than what the indictment says. If he does not accept it, then in that event we won't take the plea.

"MISS POPKIN: May I state for the record that Mr. Brundage is ready and willing to admit under oath all of the elements of the crime of robbery in the second degree including the presence of another person.

"MR. LACAVA: That is not acceptable to the People, your Honor. We would move for trial.

"MISS POPKIN: Your Honor, may I point out that the defendant has a right to plead to an indictment at any time.

"THE COURT: He is not pleading to the whole indictment.

"MISS POPKIN: Your Honor, he offers to plead to the entire indictment and also the charges of grand larceny and petty larceny.

"THE COURT: He has to plead to the indictment as charged. He is charged with the name of an individual with which he refuses to agree that he was with.

"MISS POPKIN: No, your Honor, that is a matter of evidence and not a matter of the charge.

"THE COURT: I will not accept this plea at this time. All right, we will adjourn it for another date." (Emphasis added.)

After a short recess, the matter was called again, at which time the Assistant District Attorney called upon the defendant to admit the commission of the crime in the words of the indictment and the defendant then responded, "Yes" and when the Assistant District Attorney asked "Do you admit to those facts", he again answered "Yes."

It is an essential substantive element of the crime of robbery in the second degree, under section 160.10 (subd. 1) of the Penal Law, as charged here, that it be established that the defendant forcibly stole property when "aided by another person actually present". The plea of guilty, here, is defective for the reason that, in the defendant's allocution, not only did he, by declining to admit the offense in the words of the indictment, make known to the court that its language did not apply to him, but that if his response was not so limited, "I could say what I did," and thereafter explaining that "I can't say nothing about what Ronnie did", he specifically eliminated Harris as an aide in the crime. His disclaimer of any knowledge that Harris participated in the commission of the offense, coupled with a total failure to admit the presence of any other individual, renders the plea insufficient to spell out the crime of robbery in the second degree and is therefore a nullity. Furthermore, under the circumstances of this case, inquiry by the court beyond the quest for an affirmative response to the strictured words of the indictment might well have developed facts indicating that the defendant was not a participant in any crime whatsoever.

Apart from the foregoing considerations, we are again called upon to note that although no specific catechism is required for the taking of a defendant's plea of guilty (People v. Nixon, 21 N.Y.2d 338, 353, 287 N.Y.S.2d 659, 234 N.E.2d 687), it was, under the circumstances of this case, most inappropriate for the court to insist that the plea not be accepted unless the defendant responded in the affirmative to a recital of the allegations of this indictment after he had already indicated to the court by his responses that there was no substantive basis for a plea of guilty to the crime of robbery in the second degree. When this difficulty became apparent, it was incumbent upon the court to permit the defendant to describe in his own words how the crime was committed and not to restrict the proceedings to a rereading of the words of the indictment by the Assistant District Attorney.

This procedure is mandated by the rule expressed in People v. Serrano, 15 N.Y.2d 304, 308, 258 N.Y.S.2d 386, 206 N.E.2d 330, as follows:

"But, where, as is the usual case today, the trial court, before accepting the plea of guilty, properly inquires of the defendant as to the circumstances and details of the crime to which he is admitting his guilt, the mere mouthing of the word 'guilty' may not be relied upon to establish all the elements of that crime. In such case, the requisite elements should appear from the defendant's own recital and, if the circumstances of the commission of the crime as related by the defendant do not clearly spell out the crime to which the plea is offered, then, the court should not proceed, without further inquiry, to accept the guilty plea as a valid one."

In People v. McDougle, 67 A.D.2d 989, 413 N.Y.S.2d 426, this court, in vacating a plea of guilty where the County Court similarly failed to take the necessary precaution when the defendant's allocution did not contain an essential substantive element of the crime, held as follows (pp. 989-990, 413 N.Y.S.2d 426):

"It is well established that before accepting a plea of guilty, the court should inquire of the defendant as to the circumstances and details of the crime to which he is admitting his guilt. The mere mouthing of the word 'guilty' may not be relied upon to establish all the elements of the crime. The requisite elements should appear from the defendant's own recital and, if the circumstances of the commission of the crime as related by the defendant do not clearly spell out the crime to which the plea is offered, then the court should not proceed, without further inquiry, to accept the guilty plea as a valid one. Of course, once advised that his version of the crime is not consistent with the charge to which he is pleading, a defendant might still wish to plead guilty to avoid the risk of conviction upon a trial of the more serious crimes charged in the indictment, and such a plea could be accepted by the court. The fact remains, however, that, before accepting a plea of guilty where the defendant's story does not square with the crime to which he is pleading, the court should take all precautions to assure that the defendant is aware of what he is doing. (People v. Cullen, 57 A.D.2d 903, 904 People v. Stone, 54 A.D.2d 918, 919 It should also be noted that on June 22 the court likewise failed to make further inquiry when defendant made responses which indicated that essential elements of the crime of robbery were lacking in his version of the occurrence. Thus, on September 20 such inadequacy of June 22 was not only not rectified but was compounded."

Error in the instant matter was further compounded by the proceedings which thereafter ensued. When the defendant appeared for sentence on September 10, 1979 the court declined to impose sentence because of defendant's protestations of innocence contained in the presentence report with which the court was furnished. At this point the Judge addressed the defendant and, referring to the report, said:

"THE COURT: Yes, there is a statement in the pre-sentencing report, Mr. Brundage, to the effect that although you were present at the time of this robbery, that you have nothing to do with this robbery. However, the facts in the report show that immediately after the robbery you were found in the premises wearing some of the jewelry that was taken."

The presentence report, to which reference was made, contained the defendant's assertion that he had been residing with the complainant for several weeks prior to the alleged...